SZCEJ v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FMCA 389
•15 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEJ v MINISTER FOR IMMIGRATION | [2005] FMCA 389 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – procedural fairness – failure to attend hearing – inappropriate advice by migration agent. |
Migration Act 1958 (Cth)
Al-Mehdawi v Sec of State for The Home Department [1990] AC 876
Dulan v Minister for Immigration and Multicultural Affairs (unreported, FCA, Lindgren J, 27 November 1998)
Hill v Green (1999) 48 NSWLR 161
National Australia Bank Ltd v Singh [1995] 1 Qd R 377
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SBA Foods Pty Ltd v Victorian Workcover Authority [2001] VSC 276
Sullivan v Department of Transport (1978) 20 ALR 323
| Applicant: | SZCEJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2755 of 2003 |
| Delivered on: | 15 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 15 February 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Mr K. Kappadath |
| Solicitors for the Applicant: | Gos Chambers, Solicitors |
| Counsel for the Respondent: | Mr Wee |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application for reinstatement be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $1,135.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 2755 of 2003
| SZCEJ |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to reinstate a judicial review proceeding that was dismissed by me on 30 November 2004. The matter’s history is as follows:
a)On 20 December 2002 the applicant sought a protection visa.
b)On 4 March 2003 a delegate of the Minister refused to grant that visa.
c)On 27 November 2003 the Refugee Review Tribunal (‘the RRT’) refused to overturn the delegate's decision and affirmed the delegate's refusal.
The RRT's decision was made without the benefit of seeing the applicant in person or the applicant's oral evidence. The applicant was sent a letter by the RRT on 27 August 2003 advising him:
The tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter went on to invite the applicant and any other person that he wanted to obtain oral evidence from to attend at a hearing, setting out the location of the hearing and enclosing an invitation form. The invitation form was returned to the RRT, apparently by the migration agent of the applicant at the time, declining to participate in an oral hearing.
The applicant, today, in a brief affidavit says:
I say that before the tribunal I was represented by a migration agent by the name of Mr R.J. Kumar. The agent was incompetent and negligent in the conduct of my matter before the tribunal, so much so that he advised me that it was not necessary or compulsory for me to appear before the tribunal at the hearing in person. Following his advice I was deprived of an opportunity to submit further documentary evidence and properly present my case to the tribunal. The agent has subsequently informed me and I believe that due to negligence in the conduct of his practice in general his licensed practice as a migration agent was cancelled by the responsible authorities.
I say that until recently I had no family in India as my parents and sister, after living for about two and a half years in Saudi Arabia, have returned to India only in or about end November 2004. In or about end November 2004 I have written to my parents now in India to obtain various documents, including police records and newspaper reports that supports my protection claims. I did not file the contentions in time as I was awaiting further documentary evidence from India which I intend to rely upon as proof of my protection claims in support of my application.
On 15 December 2003 the applicant applied in the Federal Magistrates Court in Sydney for a review of the RRT's decision. That application was based upon three grounds:
1.That decision made by the RRT involved an error of law whether it appears on the face of record or not.
2.That I strongly believe all the material facts on the file have not taken into an account while make the decision.
3.That in India sutiovacation (sic) is not normal and Hindu, Muslim riots are still happening. My family was the victim of it and I will be persecuted if I go back to India. The member of RRT has failed in accepting the truth that I am entitled to get protection visa on the convention grounds.
On 13 May 2004 the matter came on before his Honour Raphael FM and was transferred to Melbourne.
On 21 July 2004 consent orders for a timetable were made by Registrar Efthim with respect to filing amended grounds with proper particulars and a statement of facts and contentions. These were not complied with. On 18 August 2004 there were further orders made by Registrar Efthim with respect to procedural matters that were not complied with.
On 19 November 2004 the matter came before the Federal Magistrates Court and the applicant did not attend, apparently because of illness. The matter was adjourned to 30 November 2004 when the applicant appeared and the matter was dismissed by myself as a result of the applicant's noncompliance with previous procedural orders.
I accept the submissions of Mr Wee that when the applicant makes this application to reinstate his judicial review application he must demonstrate to the court:
a)a satisfactory reason why he has failed to comply with the courts orders; and
b)that the applicant has an arguable case.
I would say that, with respect to item (a), it would be a rare case where an applicant with an arguable case of some strength or apparent merit was refused a reinstatement simply because the reasons for default were not satisfactorily explained. Similar principles have been applied in default judgment cases: see National Australia Bank Ltd v Singh [1995] 1 Qd R 377.
The applicant on this occasion has not provided any material from which one can divine the basis for his judicial review application. His original grounds provide no real indication, save that the third ground appears to seek a merits review. When pressed, his counsel advised the court today that the applicant is hoping to obtain further documents, which he believes will factually support his claim and that that was the primary reason he was seeking to have the matter delayed further. It was accepted by his counsel, and quite properly so, that further factual material, at this stage, does not assist the applicant in judicial review proceedings as it is not open to the applicant to seek a merits review of the decision, but rather the applicant must demonstrate a jurisdictional error in the sense discussed by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.
This led his counsel to make submissions that a jurisdictional error occurred as a result of the failure of the tribunal to have an oral hearing with the applicant. The argument was presented on the basis that, whilst the Refugee Review Tribunal had written directly to the applicant specifically requesting him to attend and advising him of their attitude on the material that they had this would normally be sufficient. However in this case the migration agent for the applicant incompetently advised him not to attend and thus he missed out on his opportunity to have a hearing. It was suggested that procedural fairness required that an applicant have a real opportunity to attend for a hearing and that in this case his opportunity was effectively denied because of the allegedly incompetent advice of the migration agent. There is also some evidence before the court in the form of an allegation by the applicant that the particular migration agent has since been struck off.
It does not appear to me that decisions made in consultation with advisers as to whether or not to appear and give evidence in the tribunal can found an application for judicial review on the basis of a failure of procedural fairness. There are many cases where persons make conscious decisions as to whether or not they will give oral evidence, depending upon the nature of the case and the strength of their case. Indeed in the criminal courts it regularly occurs that lawyers give advice to their clients as to whether or not to give evidence and in many cases defendants choose not to give evidence, obviously for tactical or strategic reasons.
If it were the case that unfortunate advice from a migration agent resulted in some form of denial of procedural fairness founding judicial review then it would be that almost every case that was run before the RRT would end up before this court on a judicial review application with an applicant wishing to run the case differently to the way in which they chose to run it at first instance because they now had a different adviser. This alone points to the difficulties with the argument.
There is no doubt that the applicant was given an opportunity to appear, of which he was personally aware. This is not a ground for judicial review: Al-Mehdawi v Sec of State for The Home Department [1990] AC 876; Dulan v Minister for Immigration and Multicultural Affairs (unreported, FCA, Lindgren J, 27 November 1998) (appeal dismissed [1999] FCA 668); Hill v Green (1999) 48 NSWLR 161 (CA) at 202 [189] (Fitzgerald JA, Beazley JA agreeing); and SBA Foods Pty Ltd v Victorian Workcover Authority [2001] VSC 276 at [224]-[283] (Gillard J).
As Deane J (as he then was) said in Sullivan v Department of Transport (1978) 20 ALR 323 at 343:
…Procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”.
In the circumstances I am not satisfied that an arguable case for judicial review has been demonstrated in this matter. In the circumstances it is not appropriate that I allow the applicant to reinstate the matter.
In the circumstances I therefore refuse the application for reinstatement.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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